Commentary: Shouldn't the law be legal?

MINOT, N.D. -- As we approach the home stretch of the 2018 campaigns North Dakota's Democrats are trying to make a campaign issue out of a lawsuit challenging the legality of Obamacare.

Written By

Rob Port
Aug 8th 2018 - 9am.

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MINOT, N.D. - As we approach the home stretch of the 2018 campaigns North Dakota's Democrats are trying to make a campaign issue out of a lawsuit challenging the legality of Obamacare.

Former Congressman Earl Pomeroy, not to mention his former employee U.S. House candidate Mac Schneider, have been all but accusing Republicans of wanting to hurt people with this lawsuit.

I've interviewed both men on my radio show, and they claim a successful outcome for the plaintiffs in this suit would end provisions of Obamacare such as the requirement that those with pre-existing conditions be covered and the expansion of Medicaid.

While we can have a debate about whether or not those are desirable policy outcomes, what Schneider and Pomeroy and other politicos agitating on this issue seem to be saying is that the outcomes of the policy matter more than its legality.

Which is a heck of a thing.

This suit was filed by Texas, and the legal expenses are borne by that state, but Attorney General Wayne Stenehjem has added North Dakota to the list of plaintiffs.

The question asked in the suit is whether Obamacare continues to be constitutional.

When that controversial policy passed under President Barack Obama, and a Congress controlled by Democratic majorities, it did so on a strictly partisan vote using a budget reconciliation process that bypasses the filibuster in the Senate. Had Democrats not used that process the law probably wouldn't have passed. Or, at the very least, the Democrats would have had to make some concessions to Republicans to bring over some votes.

A previous challenge to the law argued the maneuver was unlawful because budget reconciliation is supposed to be reserved for, you know, budgeting and stuff.

Chief Justice John Roberts, writing an infamously tortured legal analysis for a majority of the court, upheld Obamacare by arguing that the penalty levied for those flouting the law's health insurance mandate was an exercise of Congress' taxing authority.

The court literally found that the use of budget reconciliation to bypass the filibuster in the Senate was kosher because Obamacare is a tax on the uninsured.

Flash forward to 2018 and, thanks to actions taken by the Trump administration, both the individual mandate and its associated tax on uninsured people (to use the interpretation of the Roberts court) are no longer.

Since the nature of the law has changed, and changed specifically in a way that eliminated the provision that was key to it being upheld in the courts, isn't it fair to question whether or not the law continues to be legal?

Schneider and Pomeroy say we shouldn't ask that question because if the law is overturned it would produce policy outcomes they don't want.

Of course, the other side of that coin is that if the law is overturned it is because it was found to be illegal by our judicial branch of government.

Our Democratic friends want us to believe that the ends justify the means, but that's no way for a society with laws to operate.